| Ark. | Nov 27, 1897
(after stating the facts.) The only question we need consider in this case is whether the laws of this state prohibit and punish adultery committed between first cousins. Our statute provides that “persons marrying, who are within the degrees of consanguinity within which marriages are declared by law to be incestuous or void absolutely, or who shall commit adultery or fornication with each other, shall be deemed guilty of incest.” The punishment for such crime is imprisonment in the penitentiary. Sand. &' H. Dig., §§ 1689, 1690. At the time this statute was enacted the law prohibited marriages between parents and children, brothers and sisters, uncles and nieces, etc., but did not prohibit the marriage of first, cousins. Subsequently, in 1875, the statute was amended so as to include first cousins, and marriages between them were dedared to be incestuous and absolutely void. Sand. & H. Dig., § 4908. This amendment of the statute brought adultery between fii'st cousins within the meaning of the statute defining- and punishing incest, for the two acts must be read together, as parts of the same law.' The amendment of the one act by implication extended the provisions of the other, for one statutory provision may be extended and enlarged by another statutory provision. Bishop, Stat. Crimes (2 Ed.), § 128. “While a statute, says a recent writer, will be construed with reference to a state of facts existing at the time of its passage, yet a statute punishing acts under circumstances depending upon legislative action for their existence will be construed as applicable to subsequent as well as preceding legislative actions, so that a penalty provided for acts committed on election day is applicable to election days provided by subsequent statutes; and a statute providing punishment for embezzlement by public officers will be applicable to an officer whose office is afterwards created, as well as when the office exists at the time of the passage of the statute.” 1 McClain, Crim. Law, § 103; State v. Kidd, 74 Ind. 554" date_filed="1881-05-15" court="Ind." case_name="State v. Kidd">74 Ind. 554; State v. Hays, 78 Mo. 600" date_filed="1883-10-15" court="Mo." case_name="State v. Hays">78 Mo. 600. The fact that marriage between first cousins was not prohibited at the time the statute defining and prohibiting incest was enacted can avail nothing, for the purpose of the statute was to prohibit and punish the illicit sexual intercouse of persons between whom marriage was forbidden by law. It had reference to both prior and subsequent legislation upon the subject of marriage, and its provisions, as we have stated, were extended by such subsequent legislation.
That incest between first cousins may be punished under our statute has been already recognized and declared by thjg court. State v. Fritts, 48 Ark. 66" date_filed="1886-11-15" court="Ark." case_name="State v. Fritts">48 Ark. 66.
Nor can we agree with the contention that the amendatory act of 1875 violated the constitutional requirement that “no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only.” Const. 1874, art. 5, § 23. It is1 true, as before stated, that sections 1689, 1690 and 4908, Sand. & H. Dig., must be read together, as if they wei’e parts of the same act; but, in amending one section of an act, it is not necessary to set out the whole act, even though other sections thereof may be, by implication, modified or extended, for the section of the constitution, above quoted does not apply to amendments by implication. Little Rock v. Quindley, 61 Ark. 622" date_filed="1896-02-01" court="Ark." case_name="Little Rock v. Quindley">61 Ark. 622; Scales v. State, 47 Ark. 476" date_filed="1886-05-15" court="Ark." case_name="Scales v. State">47 Ark. 476; Baird v. State, 52 ib. 326.
By reference thereto it will be seen that the amendatory act of 1875 does set out the amended section in full, and that was sufficient.
Finding no error, the judgment is affirmed.